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Full text of "Leonard Henderson : address ... presenting the portrait of Chief Justice Henderson to the Supreme Court of North Carolina"

A D D R E S S E S 

Presentation of Portrait of Chief Justice 

Leonard Henderson 

to the 

Supreme Court of North Carolina 



Leonard Henderson 



ADDRESS 



OF 



Judge Robert W. Winston 

Presenting the Portrait of Chief Justice Henderson to 
the Supreme Court of North Carolina 



Address of Acceptance 



BY 



Chief Justice Walter Clark 



Digitized by tine Internet Arciiive 
in 2011 witii funding from 
University of Nortii Carolina at Chapel Hill j 



http://www.archive.org/details/leonardhenderson111wins 



Address of Judge Robert W. Winston 



Mr. Chief Justice and Associate Justices oj the Supreme 
Court OJ North Carolina: 

" When Cellini's statue of Perseus was first exhibited 
on the Piazza at Florence, it was surrounded for days by an 
admiring throng, and hundreds of tributary sonnets were 
placed upon its pedestal." We are assembled today in this 
hall, whose walls are adorned with portraits of our State's 
great jurists, and in the presence of worthy successors to 
those judges, whose " dignity, wisdom and ability have 
made North Carolina's proudest possession her courts of 
justice," to hang in its proper place, between Taylor and 
Ruffin, a portrait of Chief Justice Henderson. In the 
name of. the living kinsfolk of him, of whom Judge Pear- 
son, in the leading case of State v. Deal, 64 N. C, 273, 
declared, " His powers of reflection exceeded that of any 
man who ever had a seat on this bench, unless Judge Hay- 
wood be considered his equal in this respect," I present 
to you this portrait of Leonard Henderson, one of the first 
Justices of this Court upon its organization in its present 
form in 1818, and Chief Justice of this Court from 1829 to 
the date of his death in 1833. 

The Chief Justice's grandfather was Colonel Samuel 
Henderson, who was the first high sheriff of Granville 
County. The Henderson family removed from Hanover 
County, Virginia, to Granville County, North Carolina,about 
the year 1740, and here Colonel and aftewards Judge Rich- 
ard Henderson, son of Samuel Henderson, married Elizabeth 



Keeling, from which marriage sprang the jurist, Leonard 
Henderson. A man's education begins, they say, hun- 
dreds of years before he is born, and hence it is not difficult 
to trace to their source certain characteristics of the Chief 
Justice — his originality, his independence, his rugged per- 
sonality. How could he have been otherwise? Samuel 
Henderson, the grandfather, strong and rugged, had exe- 
cuted his writs, subpoenas, and other processes, a-foot 
through the forest primeval, traversing a territory from 
Virginia on the North to Johnston on the South, and from 
the mountains on the west to Northampton on the east. 
" The father, Richard Henderson, holding the minor office 
of constable, and fired by a noble ambition, determined to 
enter the profession of the law." He accordingly read such 
books as were to be had, and after a short time presented 
himself for examination to the Chief Justice of the Gen- 
eral Court, upon whose certificate of proficiency the Gov- 
ernor would issue a license to practice law. When this 
stripling of the law made known to the examiuer that he 
had scarce been sorrowing at the feet of Coke and Littleton 
twenty months, not to mention twenty years, he was rudely 
advised to go home and not undertake to stand for his 
license, to which our undaunted young disciple of Themis 
stated with promptness and spirit, that he had come not 
to ask advice or seek a favor, but to demand a right. It is 
needless to add that the license was worthily won, in the 
teeth of the most rigid examination. Subsequently, Col- 
onel Richard Henderson attained the highest honor of the 
profession under the Royal Government, and after the 
War of the Revolution and the adoption of the Constitu- 
tion of the United States, he was elected one of the first 
three Justices of the Supreme Court of North Carolina. 
This office he shortly resigned, or refused to accept, the 
reason being that he had more ambitious schemes afoot. 
He had undertaken to establish a new colony in the west. 



and to this end had organized the Transylvania Land Com- 
pany, which purchased of the Cherokee Indians vast tracts 
of land in Kentucky and Tennessee. The position of 
Governor or President of this colony called him from his 
new honors in North Carolina. This colony progressed 
so far that it sent delegates to the Continental Congress 
at Philadelphia, asking to be admitted as the fourteenth 
State of the Union. Of Colonel Henderson it is said that 
he was the only private American citizen who had a chap- 
lain of his own. When he went into Kentucky with his 
expedition he was accompanied by a clergyman of the 
Church of England, who acted as chaplain of his forces, 
and opened with prayer Henderson's first Legislature. 
This good man was shortly afterwards scalped by the In- 
dians, who no doubt found him an easier prey than the 
heroic president of the company. 

Wheeler, in his Reminiscences, gives some interesting 
facts connected with the life of Colonel Richard Henderson. 
" On I March, 1769," quoting from the record, " at a meet- 
ing of the counsel, there being present Governor Tryon, 
John Rutherford, Benjamin Herron, Lewis DeRossett, and 
Samuel ' Strudwick, Richard Henderson was appointed 
assistant Judge, as also Maurice Moore, Esq. Governor 
Tryon reports that ' Richard Henderson, Esq., is a man of 
ability, born in Virginia and living in Hillsboro, where he 
is highly esteemed.' " Colonel Henderson must have led 
a life of much daring and some adventure. For example, 
on 24 September, 1770, he wrote Governor Tryon that on 
that day Herman Husbands, James Hunter, William But- 
ler, Ninnian Bell Hamilton, Jeremiah Fields, Matthew 
Hamilton, Eli Branson, Peter Craven, John Truitt, Abra- 
ham Teed and Samuel Parks, armed with cudgels and cow- 
hide whips, broke up the court and attempted to strike the 
Judge and made him leave the bench. They assaulted and 
beat John Williams severely, and also Edward Fanning, 



until he retreated into the store of Messrs. Johnston and 
Thackston, and demolished Fanning's house. Not only were 
these beaten, but Thomas Hart and John Ludlow, Clerk of 
the Crown, and many others were severely whipped. An- 
other entry of date 25 January, 1771, is an order entered 
by the Regulators that Richard Henderson, who appeared 
as prosecutor of several charges against Thomas Pearson, 
should pay all costs. 

Judge Richard Henderson's family consisted of four 
sons and two daughters. Of these William Henderson was 
a gallant soldier of the Revolution, Lieutenant-Colonel of 
the Third South Carolina Regiment, captured at Charles- 
ton, exchanged to First South Carolina Regiment, a hero 
of Eutaw Springs, where he was severely wounded 8 Sep- 
tember, 1 78 1. Archibald Henderson, an elder brother of 
the Chief Justice, was declared by Judge Murphy to be " the 
most perfect model of a lawyer the bar has ever produced, 
and he contributed more to give dignity to the profession 
than any lawyer since the days of General William R. 
Davie and Alfred Moore. One need not be told that he was 
the grandfather of John Steele Henderson, of Salisbury. 
Archibald Henderson was wont to say that he had known 
many good lawyers, but few good judges, and in true Bacon- 
ian fashion, proceeded to grade judicial qualifications in 
this wise : First of all, good common sense ; next, an in- 
timate knowledge of men, particularly of the middle or 
lower classes — their passions, prejudices and modes of 
thought ; thirdly, good moral character, subdued feelings 
without prejudices and partiality ; then independence and 
energy of will ; and, last of all, legal learning. Mr. Hen- 
derson must have been a most loyal party man to cast his 
vote as a member of Congress for Burr instead of Thomas 
Jefferson for President of the United States. Most of the 
Congressmen from our State voted for Mr. Jefferson. In- 
deed, so strong a Federalist as Marshall was induced by 



Hamilton to vote for the Republican, Jefferson, rather than 
for Burr. This is the real secret of the Burr-Hamilton 
duel, the remark made by Hamilton concerning Burr at 
the gubernatorial caucus in Albany being but the pretext. 
Mr. Henderson was buried in Salisbury, and a monument 
was erected to his memory by the bar of Western North 
Carolina, this being the only monument ever erected in 
North Carolina to a member of our bar by his fellows. He 
was often a member of the General Assembly and a repre- 
sentative of his district in Congress. He left surviving two 
children, Archibald Henderson, and a daughter, who mar- 
ried Judge Nathaniel Boyden, the family traits being admir- 
ably preserved in a grandson, Archibald Henderson Boyden, 
sometime mayor of Salisbury. Another son of Richard Hen- 
derson, and a 3'ounger brother of Chief Justice Henderson, 
was John Lawson Henderson, who often represented the 
Burrough of Salisbury in the General Assembly, was Comp- 
troller of the State, and Clerk of the Supreme Court, and 
died in Raleigh in 1834. Still another son was Pleasant 
Henderson, who removed to Cabarrus County. 

A bit of romance attaches to the maternal line of the 
Chief Justice. His mother was Elizabeth Keeling, and she 
was a daughter of Lord George Keeling, so doughty a 
defender of the Protestant faith in Ireland that he was 
expelled from Parliament and fled to the State of Virginia, 
where after getting together enough money by fishing with 
improvised nets in the Rappahannock to pay the expenses 
of his affianced, Miss Bullock, of crossing over from Wales 
to Virginia, they were happily married and became the 
parents of Elizabeth, aforesaid, the mother of Chief Justice 
Henderson. And albeit Elizabeth in time became the first 
lady of the land, she was so careful and thrifty a housewife 
that she taught her sons, who were to become law-givers, 
statesmen and jurists, the gentle art of carding and spinning. 

The great Chief Justice was no less fortunate in his 



friends and neighbors and in the county of his birth than 
in his ancestry. The county of Granville, bearing the 
proud name of John Carteret, Earl of Granville, stretching 
from the everlasting hills on the border well into the cotton 
belt in the east, was in itself a vast domain. In the hill 
country, on Nut Bush Creek, a few miles from the waters 
of the fast flowing Roanoke, was born 6 October, 1772, 
Leonard Henderson. Hard by his home was Williamsboro, 
named for Judge John Williams, whose sister Leonard's 
paternal grandfather had married. And at Williamsboro was 
Springer College, and Saint John's Church, and the home 
of John Stark Ravenscroft, first Bishop of North Carolina, 
and of John Penn, signer of the Declaration of Independ- 
ence, of Col. Robert Burton, member of the Continental 
Congress, of John Lewis Taylor Sneed, afterwards Chancel- 
lor of Tennessee, of Robert Goodloe Harper, of lordly 
Governor Turner, and a little later of the splendid classical 
school of Reverend Doctor Alexander Wilson ; of William 
Robards, Treasurer of North Carolina ; of William Hill 
Jordan, most eloquent of divines ; cf Patrick Hamilton, 
grandfather of the accomplished general counsel of the 
Coast Line, and of the Hargroves, Bullocks, Carringtons, 
Roysters and Baskervilles, gentle folk possessed of broad 
acres, troops of slaves and dogs of all degrees. Near the 
end of the eighteenth century, William Lee Alexander 
invaded this charmed circle and bore away Elizabeth, sis- 
ter to Leonard. But we shall forgive him for the gift of a 
grandson, sturdy scion of sturdy stock, who now sits upon 
this bench. It may not be uninteresting to note that this 
section was a close second to Chapel Hill as a suitable site 
for the location of our University ; that at Williamsboro 
both the Judge and Solicitor resided, and that from the 
Williams family of Williamsboro, descended Gen. R. F. 
Hoke, Chief Justice Pearson, John Sharp Williams, of Mis- 
sissippi ; Richmond P. Hobson, of Alabama ; Hoke Smith, 

8 



of Georgia ; Calvin Graves, R. B. Glenn, the Settles and 
Dockerys, and that great teacher and sweet spirit, Ralph 
H, Graves. Williamsboro of the eighteenth century was 
not without its attractions — a well ordered race course — 
the best in the State — and a generous tavern, for such the 
hotel was called, modeled after an English coffee house, 
and presided over by Col. Samuel Henderson. Here judges 
and lawyers and travelers of all kinds were hospitably en- 
tertained. Here George Washington paid a short visit, 
and from here went forth hunting parties into Virginia 
and up and down the fast flowing Roanoke. Perhaps the 
familiar name, "The Lick," by which Williamsboro was 
then called, had reference to the habits of the deer and 
to the spot where weary travelers, as well as the antlered 
monarchs of the forest, might gather for refreshment. 
Often making one of these parties was Pleasant Henderson, 
a brother to Leonard, who had removed to Cabarrus and 
married. We are indebted to this man, for from him was 
lineally descended one who but lately passed from earth, 
beloved beyond any man of his day, bearing the grand old 
name of gentleman — Hamilton C. Jones, of Charlotte. 

The Henderson home was called " Jonesboro," and the 
plantation, containing some six hundred acres or more, 
stretched across Little Island Creek, another tributary of 
the Roanoke. Across from "Jonesboro" was "Montpelier," 
the home of Judge Williams, and in the distance was the 
hospitable " Burnside," where the Hamiltons lived, and 
nearer to the village stood the " Sneed Mansion House," 
and not far aw^ay was " Belvidere," the romantic home of 
Captain Jack Eaton, and "Nine Oaks," where resided 
Broomfield Ridley, who married into the Henderson family 
and moved to Tennessee, becoming the ancestor of judges 
and doctors of divinity,and in easy reach stood "LaGrange," 
owned by John Hare, Esq., a friend of the Hendersons. We 
may pause to remark that it was in this vicinity that an 



incident in the early life of Edwin G. Reade, then a penni- 
less youth, turned his mind to the law and gave to North 
Carolina one of its clearest-headed jurists. The home and 
its environs made an impression upon the life of the future 
Chief Justice. Even in ruins, says Dr. Kingsbury, Wil- 
liamsboro is the most antique village to be found. It lacks 
but another Goldsmith to become another Sweet Auburn of 
the Plains. There is a ruggedness in the foothills of our 
mountain system, a serenity in the solemn forests of oak 
and pine, a spirit of reflection in the fast flowing streams 
hastening to swell the tide of the Roanoke, on whose 
banks the red man had but lately pitched his tents and 
then silently folded them forever, that made of Leonard 
Henderson a man. Here grew up the boy, occasionally 
making a visit to his relations in Salisbury, frequently 
mingling in the society of Hillsboro and Oxford, but always 
retaining his individuality. His education was confined to 
the instruction of a local teacher, Rooker by name, intro- 
duction to the Greek and Latin classics by Rev. ISIr. Patillo, 
a Presbyterian clergyman, the course of learning prescribed 
at Springer College, and one or two sessions at Salisbury. 
This preliminary work accomplished, he began the study 
of law in real earnest, and drank deep from the fountains, 
guided in his task by Judge John Williams, his relative. 
In 1795 he married his cousin, Frances Farrar, a niece of 
Judge Williams, and of this union three sons and two 
daughters reached maturity and married, to-wit : Archibald 
Erskine Henderson, Dr. W. F. Henderson and John L. 
Henderson, Frances who married Dr. W. V. Taylor, and 
Lucy who married Richard Sneed. Shortly thereafter he 
was appointed Clerk of the District Court of Hillsboro, 
where he resided for several years. The State was then 
divided into a small number of districts, in each of which 
a court of supreme jurisdiction was held twice a year, and 
as each district comprised several counties, the clerkship 



10 



must have been an office of no little emolument as well as 
dignity. 

"The district system of courts was abolished in 1806, 
and the present plan by which a Superior Court is held at 
least twice a year in each county, took its place. The State 
was divided into six circuits, and a judge was elected for 
each circuit. The judges were not required to reside in 
their circuits, and they might ride the circuits to suit them- 
selves, but no judge might ride the same circuit twice in 
succession. The Supreme Court was held in Raleigh, by 
the same judges, twice a year, in the intervals of the Su- 
perior Court ridings. Two years after the adoption of the 
Superior Court system, Leonard Henderson was chosen by 
the General Assembly to fill a vacancy caused by the death 
of his relative, Judge McCoy, and removed his family from 
Hillsboro to Williamsboro. The General Assembly at that 
time was composed of members of the Republican party, 
while Judge Henderson was an ardent supporter of Hamil- 
.ton and Madison. At the same session of the General 
Assembly, David Stone was chosen Governor of North 
Carolina, he being at that time a leader of the Republican 
party. The election of Mr. Henderson in these circum- 
stances was a high tribute to his character and eminent 
qualifications." 

After eight years' service as a judge, upon the meagre 
salary of $1,600.00 per year, he resigned his office and re- 
sumed the practice of his profession at Williamsboro. Judge 
W. H. Battle assigns as a reason for his resignation, that a 
man of limited means with an increasing family, could not 
well afford to perform the arduous duty of riding two cir- 
cuits, composed of ten counties each, and of assisting to 
hold two terms of the Supreme Court, for so small a salary. 
Neither official dignity and repose, nor a just sense of pub- 
lic duty could prevent such a man from returning to- a 
profession whose emoluments might supply the increasing 
wants of his family. 

ii 



Soon after his return to Williamsboro, though the ex- 
act date is not known, Judge Henderson opened the first 
law school ever established in the State. If this school 
had its beginning prior to 1810, it was probably the first 
law school established in the United States. Judge Hen- 
derson is therefore justly entitled to be called the " Father 
of North Carolina Law Schools." Doubtless it was while 
students at "Jonesboro" that Richmond Pearson and W. 
H. Battle dreamed of the day when they too would establish 
schools of law, modeled after that of Leonard Henderson, 
and become the idols of their boys and wear the ermine, 
even as did their beloved preceptor, and " Jonesboro " be- 
came the father of Richmond Hill and of the University 
Law School. Attracted by the fame of Judge Henderson's 
law school and by the culture and refinement of its sur- 
roundings, generous youth from far and near gathered to 
receive instruction in the law. Among others were Rich- 
mond Pearson, William Home Battle, Judge Robert Ballard 
Gilliam, Judge Burton and Governor H. G. Burton. 

In an appreciative and faithful sketch of Judge Hender- 
son, by Judge Battle, we are told that he did not deliver 
regular lectures, nor appoint stated hours for recitations, 
but directed the studies of his pupils, urging them to apply 
to him at all times for the solution of their difficulties, and 
was never better satisfied with them than when by their 
frequent applications to him for assistance, they showed 
they were studying with diligence and attention. As an 
instructor Judge Henderson was thorough and accurate. 
While he did not formulate the case-system of instruction, 
the credit of this great discovery belonging to Prof. Lang- 
dell, of Harvard, still, if tradition count for aught, his 
young students were not ignorant of concrete cases, selected 
by their teacher from the vast volume of business dispatched 
by him as a judge. Indeed, Richard Bullock, Esq., the 
wealthiest man in the community, and a justice of the 



12 



peace, often had his patience taxed to the limit by the 
enthusiasm of these twigs of the law, as they valiantly 
flashed their maiden sword in defence of hapless offenders 
in his court. Is it not, after all, the office of a law school 
to train men to think, to be firm, to be obedient to consti- 
tuted authority, to frown down upon lawlessness, to create 
a healthy, clean public sentiment — rather than to give 
them something practical ? In a word, to teach law in the 
grand manner, and to make great lawyers. Was Judge 
Holmes correct in saying, "It is from within the bar 
and not from outside that I heard the new gospel that 
learning is out of date, and that the man for the time is no 
longer the thinker and the scholar, but the smart man, un- 
encumbered with other artillery than the latest edition of 
the Digest and the latest revision of the statutes " ? If he 
was, were it not well to abolish the quizzing process ? 
Henderson and Pearson — Gamaliel and Saul — these men 
would rather their students reasoned correctly, though they 
gave a wrong answer, than that they reasoned wrong and 
stumbled upon the right answer. 

Judge Henderson was a thorough-going Federalist. He 
belonged to that class mentioned by Justice Conner in his 
sketch of Gaston who were apprehensive of the political 
future of our country under the guidance of Jefferson. 
He could but anticipate the day " when in the State of 
New York, a multitude of people, none of whom have had 
more than half a breakfast, or expects to have more than 
half a dinner, will choose a legislature, and when on one 
side a statesman will be preaching patience, respect for 
vested right, strict observance of public faith — on the other 
will be a demagogue, vaunting about the tyranny of capi- 
talists and money lenders, and asking why anybody should 
be permitted to drink champagne and ride in a carriage, 
while thousands of honest folk are in want of necessaries, 
and he could but ask himself which of these two was likely 

13 



to be preferred by a working man who hears his child cry 
for more bread. And he saw danger and danger only in 
the teachings of Jefferson, the Idealist, if not the dema- 
gogue (!), of Jefferson who was then teaching that "con- 
stitutions should not be looked upon with sanctimonious 
reverence, nor deemed like the ark of the covenant, too 
sacred to be touched, that laws and institutions should go 
hand in hand with the advance of the human mind, that the 
ofhce of judge should be for four or five years, which would 
bring their conduct at regular periods under revision and 
probation." 

These things were most shocking to the Federalists of 
that day, and yet it is but a truism that no constitution 
has ever been written which did not bear the impress of 
Jefferson's mind, and we of the twentieth century can thank 
the God of nations equally for Hamilton and Marshall and 
for Jefferson and Jackson, for Henderson as well as for 
Macon. The resultant of these contending forces is "The 
States," time's noblest offspring. We have no fear for 
our country, nor will capital and labor clash so long as leg- 
islative bodies shall continue to enact laws protecting 
childhood, shortening hours of labor, creating old age 
pensions, regulating public service corporations, taxing in- 
comes, and so long as the courts of last resort see to it that 
coaches and six are not easily driven through these benef- 
icent statutes. One who seeks the formative period of 
political opinion in America, must look to the State Con- 
ventions held at the end of the eighteenth century. The 
Convention for North Carolina convened in Saint Matthew's 
Parish Church, Hillsboro, in 1788. There the parties lined 
up for battle, and on one side or the other from that day until 
the war drum sounded in 1861, the people of North Caro- 
lina, differing from each other upon the fundamental 
principles of government, contended as two strong men 
standing face to face. Samuel Johnson, President of the 

14 



Convention, and Davie and Iredell, founders of the Feder- 
alist party, afterwards becoming the Whig party, opposing, 
and by a vote of 184 to 84, vanquishing Wiley Jones, Tim- 
othy Bloodworth and other tribunes of the people, leaders 
of the Republican party, subsequently becoming the 
Democratic party. These leaders found valiant allies 
in Nathaniel Macon and the Henderson brothers, respec- 
tively. While the victory perched first on one banner and 
then on another, the Republican-Democratic party ever 
keeping close to Jefferson, came into the ascendant, and in 
1789 at Fayetteville reversed the action of the Hillsboro 
Convention. In a few short years. Gen. W. R. Davie, the 
aristocratic leader, went down in defeat before Willis 
Alston in a heated contest for Congress. Whereupon Gen- 
eral Davie, our erstwhile representative at the Court of 
Napoleon, became so much disgusted, not only on account 
of the turn of affairs and of his own defeat, but particularly 
on account of the manner in which it was brought about, 
his rough and ready antagonist, Willis Alston, having orig- 
inated and circulated a most laughable joke which did 
much. to create a sentiment hostile to the General, that he 
removed to more congenial regions in South Carolina. 

The fame of Leonard Henderson rests not mainly upon 
his capacity as a teacher, but upon his eminent qualifica- 
tions as a judge of this Court. His pupil. Judge Battle, 
states that he was unquestionably a man of genius and in 
early life had studied wnth assiduity and success the prin- 
ciples of the common law and had made himself familiar 
with its grounds and reasons. He was never content until 
he had thoroughly comprehended whatever he met in the 
course of his reading. " On one occasion while he w^as a 
student, he came upon a passage in Bacon's Abridgement, 
which he could not understand, and his teacher being from 
home so that he could not get it explained, he came very 
near throwing aside his books in despair and abandoning 

15 



the profession forever. He had an honest as well as strong 
mind, and in all his arguments we find predominant an 
anxious search after truth. For this reason he was restive 
when he found himself opposed by precedents which he 
thought were unsupported by principle. Whatever fault 
he had as a judge was owing to this disposition, but not- 
withstanding that, he must always be regarded as standing 
higli among those who before and after him have adorned 
the Supreme Court bench of North Carolina." His ser- 
vices as a Supreme Court Judge embraced a period of fifteen 
years and his opinions may be found reported in the 4 to 
the 17 N. C, inclusive. 

In 1825 ^^ interesting question arising out of the doc- 
trine of warranty, was presented to this Court in tlie case 
of Taylor V. Shuford, II N. C, 129. Mr. Badger, with his 
usual force and clearness had contended that a deed without 
covenants of warranty would not pass an after acquired 
estate to the original grantee, his argument being that con- 
veyances which operate without transmutation of possession 
as releases, grants of incorporeal hereditaments and deeds 
which owe their operation to the statute of uses, have no such 
effect of themselves and that they pass only what the grantor 
hath and if he hath nothing they pass nothing. ]\Ir. Badger 
further contended that if the grantor afterwards acquires 
title, it inures to himself and not to the grantee. But, if 
warranty be added to such conveyance, then by force of the 
warranty and not of the conveyance, the grantor is estopped 
and title subsequently acquired shall inure to the benefit of 
the grantee. The inference is conclusive from those cases 
that no grant, release or deed operating under the statute 
of uses creates any bar except by force of an express war- 
ranty annexed to it. With this technical, though cogent 
reasoning of Mr. Badger, Chief Justice Henderson took issue 
with some tartness, as the opinion will show, and in his 
usual direct fashion, thus : " If A sells to B by indenture, 

16 



he thereby affirms that he has title when he makes his deed, 
and if he had not and afterwards acquired one, in an action 
by him against B, the title of the latter prevails, not be- 
cause A passed to him any title by his deed, for he had 
none then to pass, but because A is precluded from showing 
the fact." A vast amount of learning has been exhausted 
upon this abstruse question, as may be seen by reference to 
Prof. Mordecai's instructive and suggestive Law Lectures, 
title, " Estoppel by Warranty." It must be highly gratify- 
ing to the descendants of Chief Justice Henderson that his 
decision in Taylor v. Shuford was finally adopted by the 
Supreme Court of the United States in Van Ranselar v. 
Kearney, ii Howard, U. S., 298. 

Judge Henderson's style, as shown in his reported opin- 
ions, was clear, crisp and aphoristic. Thus after deciding 
that the right of trial by jury must be sacredly preserved 
and that an act of the Legislature which simply permits an 
appeal is not a compliance with the constitutional guaran- 
tee of trial by jury, and after construing the word "ought " 
to mean " must " and to be imperative, he concludes : "It 
is sufficient for the creature to know the will of the creator. 
Obedience is then a duty without an express command." 
In arguing this appeal. Potter, on behalf of the appellant, 
declares that "it was enough for his purpose to say that if 
he had shown that the acts giving jurisdiction are uncon- 
stitutional, any proviso saving the right of appeal, cannot 
make them constitutional." All of which is respectfully 
submitted for the consideration of the newly discovered 
Recorder's Courts. So again in Britton v. Israel, 10 N. C, 
225, Judge Henderson boldly declares that even where 
there is an express warranty of soundness, if the unsound- 
ness be apparant, and, therefore, must have been known 
to the purchaser, no action shall lie. 

As was said by Judge Battle in his Memoir of Chief 
Justice Henderson in the University Magazine for Novem- 

17 



ber, 1859, the first three judges of our Supreme Court, 
Hall, Henderson and Taylor, were especially desirous to 
settle for North Carolina a system of law founded upon the 
common law of England, modified, indeed, to some extent, 
to suit the peculiar nature of our institutions and altered 
in many respects by legislative enactment. In this attempt 
they were greatly aided by the argument of a bar which 
had no superior, and hardly an equal, in any State of the 
Union. The truth of this will readily be acknowledged by 
those who read the names of Archibald Henderson, Wil- 
liam Gaston, Thomas Rufllin, Moses Mordecai, Gavin Hogg, 
Peter Brown, Joseph Wilson and Henry Seawell. Some 
of these were succeeded a few years later by Duncan Cam- 
eron, Francis L. Hawks, George E. Badger, Thomas P. 
Devereux, Frederic Nash, Samuel Hillman, William H. 
Haywood, Patrick Henry Winston, of Anson, and James 
Iredell. To be Chief Justice of this Court and to be worthy 
of the position — what, honor in the gift of the people ap- 
proaches it — what opportunity for good equals it ? Taylor, 
Henderson, Ruffin, Nash, Pearson, Smith, Merrimon, Shep- 
herd, Faircloth, Furches, Clark, nomina venerabiles et 
clarissima. 

It is said that on one occasion Bishop Ravenscroft at- 
tempted to reprove the Judge because of his religious or 
want of religious views, whereupon the Judge retorted, 
" It were well for you to have your horse hitched before 
you crack your whip." Unfortunate for the religion of a 
hundred years ago, its doctrine was proven orthodox by 
apostolic blows and knocks, and the ecclesiastics persisted 
in churching such men as Thomas Jefferson, who were 
by no means scoffers or unbelievers, but earnest seekers 
after truth, and who today would be worshipping at the 
same altar with Chas. W. Elliot, Edward Everett Hale and 
William H. Taft. Religious tolerance did not character- 
ize an age taught by blind mouths whose lean and flashy 

18 



songs grate upon their scrannel pipes of wretched straw, an 
aofe which disfranchised Catholics and forbade Hebrews 
owning real estate — and yet it was such an age that pro- 
nounced the boldness of the Chief Justice to be skepticism. 
A Christian poet had not then sung — 

' ' There lives more faith in honest doubt, 
Believe me, than in half the creeds " — 

Nor had we learned that if the normal man is let alone, to 
him the Heavens will declare the glory of God and the 
firmament show His handiwork. Such a man will finally 
come, like Napoleon, to declare, " I know men, and Jesus 
Christ was no mere man," or like Webster to exclaim, "No 
man can read the sermon on the Mount and be an infidel." 
Whatever in youth Henderson believed or disbelieved, he 
finally became a constant worshipper at and communicant 
of old Saint John's Church, and his pew may now be seen 
by the curious pilgrim to this ancient shrine. 

Judge Henderson was a large man physically. He 
weighed 212 pounds and was more than six feet in height. 
His hair was dark and profuse and well roached back 
from his forehead. His eyes were large and grey and in 
repose appeared rather heavy, says Dr. Kingsbury, seeming 
to be " in-taking rather than giving out." His head was 
large, strikingly symmetrical, with forehead high, broad 
and exquisitely chiseled. Like all the Hendersons of his 
day, he had a remarkable length of chin, and his mouth 
was fixed well back in his head. This gave occasion to a 
witty Rowan farmer to remark when the Judge presided 
the first time in Salisbury, that he thought Baldy Hender- 
son's mouth was far enough back in his head, but the Judge 
had swallowed his. When the fiery Bishop Ravenscroft 
removed to Williamsboro, Judge Henderson did not call as 
soon as he might and the stern Bishop, who was preparing 
his hebdomadal homily, made no further recognition of the 
belated visit than a turn of the head, at once resuming his 

19 



task. The Judge withdrew and told his boys at the law 
school that he had been treated right for his discourtesy. 

Judge Battle represents Judge Henderson as kind, affa- 
ble and courteous, in domestic and social life. He posses- 
sed in no ordinary degree the love of his wife and children, 
and there was no man whose intercourse with his family was 
better calculated to win their confidence and affection. To 
this day his memory is held in tender affection by his de- 
cendants, one of whom, now serving his State in the legis- 
lative halls, and but yesterday in the roar of battle bury- 
ing a leg upon the red hills of Virginia, will, like Gunga 
Din, " dot and carry one till the longest day is done," and 
another, mingling the blood of Henderson and Scales, 
respected by the whole State, has but entered upon his 
career. Judge Henderson was a delight to his friends, and 
his fine conversational powers, aided by a strong and ener- 
getic expression, always drew around him a circle of ad- 
miring listeners. With the people of the State he was 
always a favorite. - No better illustration of this could be 
furnished than his election on the first ballot by the Legisla- 
ture, together with a personal friend but political opponent, 
over four other gentlemen of great name and extensive 
influence in the State, Taylor, Seawell, IMurphy and Yan- 
cey. He filled no other offices than that of the Clerk of the 
District Court at Hillsboro, Trustee of the University of 
North Carolina, and Judge of the Superior and Supreme 
Courts. One county and three cities in this and other 
States bear the name of Henderson, such an impression did 
this virile family make upon mankind. 

On 13 August, 1833, the spirit of the Chief Justice pass- 
ed to its reward. For him his contemporaries manifested 
both veneration and affection. A meeting of the Bar, at 
which Adolphus Erwin presided and Burgess S. Gaither 
was secretary, was held in August, 1833, at Asheville, and 
after adopting the usual preamble, the resolutions draugh- 

20 



ted by Samuel Hillman, Esq., declared of the late Chief 
Justice that his life and character had been identified with 
the legal history of North Carolina, his urbanity of man- 
ners, dignity of deportment, unspeakable honesty, unshaken 
independence and vigilant regard for every class of suitors, 
have maintained the universal respect and esteem of the 
profession, and his genius and talents have contributed 
much to erect a regular system of law and equity, adapted 
to our peculiar conditions, interests and institutions. A 
meeting of the Granville Bar was presided over by Judge 
J . R. Donnell and Hugh Waddell acted as secretary. The 
resolutions declared that " the judicial office in the govern- 
ment of laws is that in which the community have the 
profoundest interest, for in addition to the moral and intel- 
lectual elevation of him who fills it, is the respect felt for 
the laws themselves, and all good men deplore as a public 
calamity that such an office should ever be feebly filled, as 
to the mass of mankind the step is easy from a contempt 
for the organ to a contempt for the law itself. As a Judge 
the deceased was of inestimable value to North Carolina. 
The genius, the learning, the firmness which characterized 
him, insured the faithful execution of the laws and com- 
manded the universal confidence of the public." Judge 
Ruffin was making preparation to visit Chief Justice Hen- 
derson at Williamsboro when news of the latter's death 
was announced. At once he hastened to Raleio-h, and from 
the capital on the 21 August, 1833, wrote to John L. Hen- 
derson, a son of the Chief Justice : 

"There is a vacuum here which none can fill. Time 
(what cannot time do of good as well as of evil) will, I trust 
alleviate the pangs of sorrow I now experience, and sweeten 
the chalice he has so lately embittered to you. Your father 
is gone now, but let his works live after him. Forget not 
his virtues, his purity of heart, his benevolence, his power- 
ful and profound intellect, but while they are yet fresh in 

21 



your mind, let all that he said or did be carefully and fre- 
quently thought of so that the impression on your own 
mind may be permanent, and you thereby keep him con- 
stantly by you as a counsellor and guide." 

The entire letter should be published as a model not only 
of elegance of diction, but of the love which bound together 
the two great Chief Justices, Ruffin and Henderson. 

When the spirit of Daniel Webster was passing from 
earth, he signified his wish to be rolled upon his couch to 
the window that he might look for the last time upon the 
beautiful scenes surrounding " Marshfield," his country 
home, and that he might gaze once again into the honest 
eyes of his oxen which were driven near the bedside. 
When the spirit of the Chief Justice was passing from earth, 
13 August, 1833, he requested his friends to permit him 
to gaze for the last time upon the scenes of his childhood, 
loved Montpelier, and the last words which he uttered 
were these : " I have passed the portals and see nothing 
terrifying." 

Such was Leonard Henderson, racy, of the soil of North 
Carolina, bluff, honest, despising shams, thinking what he 
had a mind to and saying what he thought, worthy of his 
great name, a beacon light to guide you. Sirs and me, and 
and all generations to come, and an admonition to little 
men that hypocrisy and self-seeking and sycophancy and 
concealing one's honest opinions, are lies, hurtful not alone 
to the State but more hurtful to the man himself. With 
Mansfield he could say, " I wish popularity, but it is that 
popularity which follows, not that which is run after. It 
is that popularity which sooner or later never fails to do 
justice to the pursuit of noble ends by noble means." 



22 



Address of Acceptance by Chief Justice 

Clark. 



Time tries all things. Well has the memory and fame 
of Chief Justice Henderson stood this stern test. More 
than three-fourths of a century have now gone since he 
passed from his seat on this bench, but his place in the 
opinion of the bar and people of North Carolina has in 
no wise abated from that given him when his loss was still 
fresh and when the spell of his personal magnetism and 
personal friendships still lingered. A beautiful county and 
two towns bear his name — an honor North Carolina has 
conferred on no other member of this bench save the loved 
and lamented Gaston. 

Alone among the nations of the world, and alone in all 
the tide of time, England and the peoples that speak her 
tongue have adopted the system of precedents by which the 
opinions of a Judge or of a Court are considered ever after as 
authority (unless overruled) in other courts, upon the same 
or a more or less similar state of facts. In all other countries 
and in all other times, the law of a case has been governed 
by statute and when that was lacking the opinion of the 
court which tries a case has been considered as sound, and 
as likely to be right, as that of a former Court in a litigation 
between other parties. Priority of time is not considered 
as superiority of wisdom. Whatever the merits of the two 
systems, ours gives signs of breaking down. The immense 
increase in the number of volumes of reported cases has 
long ago placed a complete collection of the whole body of 

23 



the laws beyond the purse and beyond the time and capac- 
ity of research of the practitioner and taxes the means of 
state and city libraries. Encyclopedias and other compi- 
lations are unsatisfactory palliatives constantly requiring 
additions and further condensations. Amid such an enor- 
mous and growing tide of judicial utterances, from courts 
and judges of every degree of capacity and learning, there 
is already a hopeless conflict of decisions and with a little 
diligence an array of precedents can be culled to sustain 
either side of almost every proposition. 

It would be a palpable absurdity for any court to merely 
count the number of cases on either side and award the re- 
sult to counsel whose diligence can unearth the larger 
number of precedents, without reference to their value, 
based upon their reasoning and the reputation of the court 
or judge from whose pen they come. In this situation 
the courts are driven more and more to rely rather upon 
the opinion of the great leaders among the judges of known 
ability and clearness of view. In North Carolina, the bar 
and bench have thus always turned to the opinions of Chief 
Justice Henderson, with entire confidence, that when he 
has discussed a subject there is little that can be added and 
in full reliance upon the accuracy of the result that he has 
reached. Thus time and the process of events have added 
to and not diminished his value and fame. 

The descendants of Chief Justice Henderson — lineal and 
collateral — have themselves rendered notable services to 
the State and have added to the ancestral honors descended 
upon them. The Court is glad to receive at their hands 
this portrait of the great lawyer and the great judge. The 
Marshal will hang it in its appropriate place upon the walls 
of this chamber by the side of his great compeers. The 
valuable, instructive and interesting address of Judge Win- 
ston in presenting the portrait will be printed in the next 
volume of our reports. 

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